Louisiana

June 11, 2015

It’s been awhile since Captain Obvious made an appearance at ThePopTort. Unfortunately in the meantime (you may have noticed) Hotels.com got ahold of him. I think it’s time to pull him out of corporate advertising and back to the world of medical malpractice – at least for today.

According to a new study published in the May/June issue of the American Journal of Medical Quality, a state can actually reduce malpractice claims by – wait for it – improving the quality of care. Turns out you can reduce claims and lawsuits not only by stripping patients of their legal rights after they’ve already been hurt (as in Texas). You can accomplish the same thing by stopping the injuries and deaths in the first place, which they found examining a hospital system in Louisiana. Doesn’t that seem, I dunno obvious? And better? An article about the study says:

In Louisiana, the drop in malpractice claims corresponded with an increase in hospitals' quality scores.… [T]he decrease in claims showed a statistically significant correlation with the increase in quality scores based on 22 Medicare measures....

The researchers' findings suggest that hospitals can reduce liability with or without tort reform, says co-author Khaled J. Saleh, MD, chief of the hospital's Division of Orthopedic Surgery and a study co-author.

“Clearly, the evidence shows that if you do high quality care, it is well received by patients and decreases your medicolegal costs," he said in a telephone interview.

On the other hand, in Texas, the laws are now so Draconian that legitimate claims can no longer be brought. For more proof of that, check out this new book,Tort Reform, Plaintiffs' Lawyers, and Access to Justice by Stephen Daniels of the American Bar Foundation and Joanne Martin at the American Bar Endowment. They explain,

Reduce lawyers' ability to use contingency fees as compensation, as tort reform inevitably does, and you reduce their economic incentive to do this work. … Drawing on over 20 years of research, extensive surveys and interviews, the authors explore the impact the tort reform movement in Texas has had on the ability of plaintiffs to obtain judgments--in short on private citizens' meaningful access to the full power of the law.

I know I’ve heard this kind of thing about quality of care before. Oh yeah. In 2010, we wrote about a Rand study that found:

[There is a] highly significant correlation between the frequency of adverse events and malpractice claims: On average, a county that shows a decrease of 10 adverse events in a given year would also see a decrease of 3.7 malpractice claims.

[N]ew safety interventions potentially can have positive effects on the volume of malpractice litigation—a desirable result to seek out, even beyond the immediate impact of medical injuries avoided.

[T]hree physicians published an article about a comprehensive obstetric patient safety program that was implemented in the labor and delivery unit at NY Presbyterian Hospital-Weill Cornell Medical Center. They found that “that implementing a comprehensive obstetric patient safety program not only decreases severe adverse outcomes but can also have an immediate impact on compensation payments.” For example, they reported that “2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000). The average yearly compensation payment in the 3 years from 2007 to 2009 was $2,550,136 as compared with an average of $27,591,610 in the previous 4 years (2003-2006), a yearly saving of $25,041,475 (total: $75,124,424) during the last 3 years.”

How is it that some respected opinion leaders don’t seem to care about addressing the problem of deaths, injuries, claims and lawsuits with proven patient safety solutions, but instead would rather focus on reducing accountability and the legal rights of sick and injured patients after they’ve been hurt? And by the way, then forcing taxpayers to pick up the tab for their care and letting the med mal insurance industry make out like bandits.

It's obvious, but it bears repeating: The best way to reduce malpractice litigation is not to take away the rights of injured patients, but to reduce the amount of malpractice.

October 07, 2014

The highly-partisan industry lobby group, U.S. Chamber of Commerce, has been acting against the interests of its small business and local Chamber of Commerce members for years. Selling out the small businesses it should be representing? Check. Public attacks on and alienation from the very communities it should be promoting? Check.

If you are a business or a local Chamber in the Gulf region, the U.S. Chamber of Commerce has (remarkably) been at war with you for years. Let’s begin with the fact that for several years following Hurricanes Katrina and Rita, the U.S. Chamber inexplicably targeted for criticism every state in the hurricane-ravaged Gulf Coast region, suggesting that these states are bad for businesses.

But there is more. Yesterday, several local Gulf area chambers filed an amicus brief in the U.S. Supreme Court, which “blasted the national chamber for ignoring thousands of its members to support one large one,” i.e. BP.

The local chambers are: the Mobile Area Chamber of Commerce, the New Orleans Chamber of Commerce, the Greater Pensacola Chamber of Commerce, the Ascension Chamber of Commerce, the Charlotte County Chamber of Commerce, the St. Bernard Parish Chamber of Commerce, the River Region Chamber of Commerce and the Chamber of Commerce of Cape Coral. They represent “over 7,000 businesses, large and small, throughout the affected region of the Gulf of Mexico” and all are affiliates of U.S. Chamber of Commerce. They are angry and with good reason.

[w]ere negatively impacted to one extent or another by the events of April 20, 2010 and the subsequent economic and environmental disaster caused by [BP]’s gross negligence. These Affiliates and their members wish to inform the Court of their disagreement with, and objection to, the amicus brief filed by The [U.S.] Chamber in support of [BP], as The [U.S.] Chamber does not speak for these Affiliates and their members in this instance.…

The [U.S.] Chamber purports to speak for “more than three million U.S. businesses and organizations of every size, in every industry, and from every region of the country” (Chamber Br. at 2), yet it fails to disclose that hundreds, and potentially thousands, of Affiliates of The [U.S.] Chamber and business members of those Affiliates have filed claims for business economic losses in reliance on the Settlement Agreement – a Contract – and the very compensation system [BP] designed, lobbied for District Court approval of, attested to the adequacy and fairness of under oath, and initially defended before the Fifth Circuit Court of Appeals.…

Affiliates feel compelled to inform the Court of the misstatements made by The [U.S.] Chamber in its amicus brief.…

Unfortunately, with this issue of utmost importance to the many small business members that were deleteriously affected by the [BP]’s gross negligence, the opinions of these members were not solicited, and when expressed were not respected. The [U.S.] Chamber obviously did not and does not serve as the “voice” of these members, as it misstates in its amicus brief.…

The Chamber serves the express interests of a foreign corporation at the expense of a very large number of its Affiliates and individual business members.

June 27, 2013

When it comes to “chutzpah” (or as Michelle Bachman once
fondly put it, “choot-spa”), it’s hard to beat U.S. Supreme Court Justice Antonin Gregory Scalia this week. Linda Greenhouse of the New York Timestried to make sense of his Voting Rights Act/DOMA views, starting with Scalia’s
ranting DOMA dissent:

The case, he said, “is about the
power of our people to govern themselves.” He added: “We have no power under
the Constitution to invalidate this democratically adopted legislation.” The
court’s error came from a “diseased root: an exalted conception of the role of
this institution in America,” Justice Scalia said, referring to the court
itself.

These are amazing words from a
justice who only a day earlier had joined the 5-to-4 majority that disabled
Section 5 of the Voting Rights Act – the renewal of which seven years ago
passed overwhelmingly after 20 months of consideration, 21 hearings and a
legislative record amounting to 15,000 pages. As Justice Ginsburg pointed out
in her Shelby County dissent, distrust of Congress radiates from the majority’s
every page.

And not to mention other 5-4 SCOTUS gems this past week, like the one stripping
generic drug injury victims of all state tort remedies (see our coverage here),
deciding apparently that the federal government gets it right every time when
it comes to drug safety - which no one believes, and you know they sure don't believe. Or deciding that the Federal Arbitration
Act of 1924 trumps not only all state laws but also all federal laws that grant victims the right to go to court to vindicate
their rights.

Well as I said, I thought
nothing could beat that kind of choot-spa.
But then, BP showed up.

If you can believe this, BP is now trying to intimidate businesses that it harmed following the 2010 Deepwater
Horizon explosion (and as we recently noted, a disaster that continues to wreak havoc)
from being adequately compensated according to a settlement that BP negotiated
and agreed to. The company is going so
far as to purchase enormously expensive full-page print ads in major U.S.
newspapers showing why it doesn’t want to spend money helping businessesthat
it harmed and agreed to compensate.

Here’s an example of how
offensive BP is being towards these businesses:

When BP hosted an event at the London Olympics to promote
Gulf seafood and highlight its oil-spill cleanup efforts, Louisiana chef John
Folse appeared in his BP chef coat with several tons of seafood dishes his
company cooked up and shipped overseas from his manufacturing plant in
Donaldsonville.

Now, BP is arguing that Chef John Folse & Co. is not a
seafood processor at all -- and therefore should not get the millions of
dollars a court-appointed claims administrator recently awarded it to cover its
spill-related losses.…

Loyola Law Professor Blaine LeCesne, “who
has been closely following the civil claims process from the beginning,” found
it “laughable that BP is trying to deny the claim when they have so publicly
co-opted Folse’s business to promote themselves on the world stage.”

Here’s another example: “BP called Wall’s Gator Farm in
Springfield an example of a ‘fictitious’ agricultural claim. But an affidavit
by the farm’s consultant states that alligator eggs were damaged by the spill
and that accounted for $2 million in losses -- more than double what Juneau
calculated.”

Meanwhile, BP has
sent out “hundreds of letters” asserting that “if it is successful in court in
trying to block those payments, the company expects that the claims
administrator will fulfill his fiduciary duties by seeking to recover all
excessive claims payments” and instructs claimants’ lawyers, “You may wish to
advise your client to consider the effect of such potential obligations for
budgeting and planning.”

[Attorney Steve] Herman described the letter as a “hollow intimidation
tactic” that was “disingenuous, inaccurate and inappropriate”.

He added: “One thing the letter is not, is surprising, given that BP
has been suspended from doing business with the US government for a lack of
corporate integrity, and pleaded guilty to lying to the federal government
about the spill.”

Mary Alice McLarty,
president of the American Association for Justice, added that this is a “campaign to evade accountability”:

“BP is not a victim of small businesses, judges or even trial lawyers;
they are still just a corporate felon who pled guilty to killing 11 rig
workers, polluted the Gulf and ruined the livelihoods of thousands of
Americans," McLarty said in a statement.…

“Simply put, BP has buyers' remorse
because it guessed wrong on the cost of a deal, which it - for nearly two years
- negotiated, co-authored, agreed to and sought court approval of,” said Jim
Roy, one of the lawyers for the individuals and businesses who sought
compensation. “The notion that BP is somehow trying to portray itself as a
victim is preposterous.”

June 18, 2013

East Coast hurricanes. Plain state tornadoes. Colorado fires. Man made climate change is undoubtedly responsible for a lot of this, but these kinds of disasters are clearly not all our fault. The recent spat of reckless industrial accidents in the Gulf states however? That’s all us.

Before dawn this morning, a 30-inch Florida Gas Transmission natural gas line (owned by Energy Transfer Partners of Dallas) exploded in rural Louisiana “sending a fireball into the sky.” (This natural gas system “starts in Texas and runs along Gulf Coast and into Florida.”) Fortunately this time, “no injuries or significant property damage have been reported” although American Red Cross volunteers are helping area residents who were evacuated.

Louisiana residents weren’t so "lucky" last week, however, where an explosion at a nitrogen fertilizer plant in Donaldsonville LA killed 34-year company employee, Ronald "Rocky" Morris, Jr., and injured seven others. Writes the Times-Picayune,

The incident marked the second deadly accident at an Ascension Parish facility in as many days, occurring not far from the site of an explosion at a Geismar petrochemical plant Thursday. Propylene, one of two highly flammable chemicals produced by the plant, had caught fire at that facility, owned by Tulsa, Okla.-based Williams Companies Inc. Two people were killed and 77 were reported injured.

Meanwhile in Texas, where on April 17 the West Fertilizer plant explosion killed 15 and injured over 200 people while destroying “nearby apartments, houses and a nursing home” (see our earlier coverage here), the state may actually do something - at least to help alert people that they’re living near one of these plants. Writes the Dallas Morning News,

The state plans to compile a registry of businesses with dangerous chemicals so citizens can learn about hazards like the fertilizer plant in West, where a fire triggered a massive blast of ammonium nitrate. The online database is among a handful of proposals, aired at a hearing Monday, that legislators said would not involve new laws or regulations, or increases in state spending.

“Wouldn’t you want to know if there’s a chemical facility in your neighborhood with hazardous material, ammonium nitrate, or other types of chemicals? And the answer is yes,” Steve McCaw, director of the Texas Department of Public Safety, told the House Homeland Security and Public Safety Committee.

Remember, these states are still recovering from the 2010 BP explosion and oil spill disaster in the Gulf which, as Scientific American recently pointed out, is far from over as “little has been done to repair damage to marine life and ecosystems.”

“Three years after the initial explosion, the impacts of the disaster continue to unfold,” says Doug Inkley, senior scientist at the National Wildlife Federation (NWF). A recent report by the group found that the three-year-old spill is still having a serious negative effect on wildlife populations in the Gulf. For one, dolphin deaths in the region have remained above average every single month since the disaster. In the first two months of 2013, infant dolphins were found dead at six times pre-spill average rates. Says Inkley: “These ongoing deaths—particularly in an apex predator like the dolphin—are a strong indication that there is something amiss with the Gulf ecosystem. …

“The oil disaster highlighted the gaps in our understanding of the Gulf of Mexico,” says Florida State University oceanographer Ian MacDonald. “What frustrates me is how little has changed over the past three years. In many cases, funding for critical research has even been even been cut, limiting our understanding of the disaster’s impacts.”…

MacDonald and others are optimistic that a federal court will find BP accountable for further damages in a civil trial now underway. NWF says that substantially more money is needed to carry out restoration efforts vital to the biological and economic stability of the Gulf region. “Despite the public relations blitz by BP, this spill is not over,” says NWF’s David Muth. “Justice will only be served when BP and its co-defendants pay to restore the wildlife and habitats of the Mississippi River Delta and the Gulf of Mexico.”

January 04, 2013

When did oil misfortunes become so popular? Not that this topic hasn’t always been timeless and dramatic. (Like, it’s not every 1927 Upton Sinclair novel - the one called Oil! - so easily lends itself to being turned into an Oscar-winning film 80 years later. And it’s not every environmental catastrophe - the one created by oil - that’s devastating enough to lure Mos Def, Lenny Kravitz, the Preservation Hall Band, Trombone Shorty, and Tim Robbins simultaneously into the studio! See below.)

But a quick perusal of the news this week makes clear that misfortunes (to put it mildly) created by “oil” are all the rage, these days. Here’s our highlight reel:

On Thursday, the U.S. Justice Department “reached a $1.4 billion settlement ... with Transocean Ltd., the owner of the drilling rig that sank after an explosion killed 11 workers and spawned the massive 2010 oil spill in the Gulf of Mexico.” Notes the Associated Press, “BP PLC, which leased the rig from Transocean, already has agreed to pay a record $4.5 billion in penalties and plead guilty to manslaughter and other criminal charges related to the spill. The deal with BP doesn't resolve the federal government's civil claims against the London-based oil company.” And, “Last month, U.S. District Judge Carl Barbier in New Orleans gave final approval to a class-action settlement agreement between BP and a team of private plaintiffs' attorneys. BP estimates it will pay about $7.8 billion to resolve these claims, but the settlement isn't capped. Barbier also is set to preside over a trial designed to identify the causes of BP's deadly well blowout and assign percentages of fault to the companies involved. The first phase of the trial is scheduled to start Feb. 25.”

Also yesterday, “The House Sustainable Energy and Environment Coalition called on the Interior Department and the Coast Guard to jointly investigate the New Year's Eve grounding of the Shell drilling vessel Kulluk on a remote Gulf of Alaska island, and a previous incident connected to Arctic offshore drilling operations in 2012.” WritesAP,

"The recent grounding of Shell's Kulluk oil rig amplifies the risks of drilling in the Arctic," they said in a joint statement. "This is the latest in a series of alarming blunders, including the near-grounding of another of Shell's Arctic drilling rigs, the 47-year-old Noble Discoverer, in Dutch Harbor and the failure of its blowout containment dome, the Arctic Challenger, in lake-like conditions."

And speaking of the Associated Press, the newswire just got hold of a Department of Transportation report to Congress (set to be released next week), which finds that 16 pipeline spills “caused by flooding and riverbed erosion dumped 2.4 million gallons of crude oil and other hazardous liquids into U.S. waterways over the past two decades. … Of the 2.4 million gallons of oil, gasoline, propane and other hazardous liquids released, less than 300,000 gallons was recovered,” threatening drinking water supplies.

The massive August 6 Chevron refinery fire in Richmond California (San Francisco’s East Bay) may have been made worse by company firefighters who may have punctured a pipe – a “40-year-old pipe had already been weakened by the heavy sulfur content of the crude oil being pumped through it.” Meanwhile, reports the New York Times, many area residents are furious about,

Chevron’s choice of metal to replace a 5-foot-long, 8-inch carbon-steel pipe that became corroded and sprang a leak in August. The resulting fire sent plumes of black smoke into the air, spewing emissions of sulfur dioxide, as the authorities warned Richmond residents to stay indoors. Thousands went to emergency rooms with various health complaints. Chevron says it will compensate residents with valid claims for medical and property expenses, although it has not said how many of the 23,700 claims it has received will qualify.

And there are more problems in the Gulf of Mexico. Check out this incredible story:

An oil company admitted Thursday that coffee filters were used to doctor water samples and cover up the fact that it was dumping oil and grease into the Gulf of Mexico on its platform 175 miles south of New Orleans.

W&T Offshore pleaded guilty to a felony and a misdemeanor and agreed to pay $700,000 in fines and $300,000 for community service. W&T, which is based in Texas, announced last month that it would plead guilty to tampering with water samples from its Ewing Banks Block 910 platform and illegally discharging into the Gulf.
The guilty plea also included additional details about the company’s crimes.

Those details included the fact that W&T’s contractors used coffee filters to clean the water samples before submitting them to regulators.
Also, the company admitted that when they spilled some oil in November 2009, they not only failed to report it to the Coast Guard, but sprayed the oil into the Gulf and then hired a company that worked for three days to clean the platform to make it look like there never was a spill.

Inspectors from the Bureau of Safety and Environmental Enforcement still found oil staining on the platform deck and visible sheen in the water, all of which W&T failed to report as required.

June 25, 2012

Today, the U.S. Supreme Court refused to hear an appeal from Louisiana Citizens Property Insurance Corporation. This appeal followed a Louisiana Supreme Court decision upholding a local court decision ordering Citizens to pay $105 million in penalities to thousands of policyholders it harmed after Hurricane Katrina. Citizens had been set-up in 2003 as a state-sponsored “insurer of last resort” to provide homeowners insurance to those who could not find coverage in the private market. You will no doubt recall that following the 2005 storm, many individuals were left destitute, without food, water or a roof over their heads. As this report showed, Citizens policyholders had a particularly horrendous time – probably the worst of anyone - trying to file claims or get them paid. And that’s saying something. Citizens has the money, but says it’s gong to continue to try to fight this in federal court.

The 5-4 decision favored Texas Mutual Insurance Co. of Austin, the state's largest workers' compensation insurance carrier. The case was one in which Texas Mutual had initially denied an injured worker's claim, saying he was hurt playing softball and not at work, before the company eventually settled the case.

The worker, Timothy Ruttiger of Galveston, later sued the insurance company, claiming the delay in getting his benefits damaged his credit, worsened his hernias and caused mental anguish, pain and suffering.

A Houston jury awarded Ruttiger $173,500, plus attorney fees, but last summer the Texas Supreme Court ruled that Ruttiger take nothing under the insurance code and deceptive trade practices law. But the higher court sent back the bad-faith claim for reconsideration by a Houston appellate court.

Before the appellate court acted, the Supreme Court granted a request for a rehearing.

On Friday, the decision eliminated the bad-faith provision that had been law for 23 years. …

Alex Winslow with the Texas Watch Foundation's Court Watch project said that the decision is another example of the Supreme Court's conservative activism.

“Five robed justices have gone out of their way to second-guess the clear and decades-long intent of the Legislature,” he said in a news release.

June 08, 2012

Forget The Hunger Games. Today in America, we're all playing The Eating Games and here’s how it’s played: eat something and hope it doesn't kill you. Let’s review some of the different ways this game is being played this week.

First came news on Monday that Jensen Farms in Colorado, which was identified as the source of a deadly listeria outbreak last fall involving cantaloupes, killing 30 and sickening 146, may be close to settling. “Bill Marler, a lawyer for 39 of the plaintiffs, said the settlement also could include a company that manufactures and imports food-processing equipment and a firm that did a safety audit of the farm.” That’s good news (assuming the bankruptcy judge approves it now that Jensen has filed for Chapter 11). For more on Jensen, the listeria outbreak and the failure of safety audits, see the Center for Justice & Democracy’s recent report, Our Fatal Food Attraction; Regulatory Failures and the Civil Justice System.

Next came news Wednesday that the House Appropriations Subcommittee on Agriculture, "approved funding for the U.S. Department of Agriculture and the U.S. Food and Drug Administration for fiscal year 2013 with no new funding for food safety.” (emphasis added) At least the subcommittee didn’t cut the budget, as threatened. But given the distressing state of food safety - especially when it comes to the FDA, charged with regulating everything besides meat, poultry, processed egg products and catfish while only inspecting facilities every 5-10 years (learn more here), this isn’t great news. Plus, the FDA is trying to obtain “substantially more resources to help implement the Food Safety Modernization Act," signed into law in 2011, which is supposed to improve things except there’s never been funding to implement it.

As part of President Obama's push to streamline regulations on businesses, the U.S. Department of Agriculture plans to let chicken slaughterhouses run production lines faster and with fewer federal inspectors, angering food safety advocates and poultry plant workers.

Under the proposal, production lines would be allowed to move 25% faster, while the government would cut by as much as 75% the number of line inspectors eyeing chicken bodies for defects before the carcasses are packaged for consumption.…

Tony Corbo, at the health advocacy group Food and Water Watch, calls it "a privatization of poultry inspection" because plant employees would be responsible for spotting and removing defective chickens. Consumer advocates said the rising rates of salmonella infection in recent years should give pause to any plans to cut the number of federal inspectors at poultry plants.

Yuck. On the other hand, “the National Chicken Council” and its $45-billion-a-year poultry industry client loves the idea.

Interestingly, writes the LA Times, “Most poultry plants are located in the South.” Speaking of which, we also learned this week that federal and state health officials in the South are trying to figure out the source of “what appears to be a multistate E. coli outbreak that recently took the life of a 21-month-old child in Louisiana.” Ironically, as ABC Newspoints out, “The largest cluster of five sickened people, ranging in age from 18 to 52, is centered in Atlanta [Georgia], home to the Centers for Disease Control and Prevention.”

My first thought after reading all this was to jump on the vegan bandwagon with President Clinton and Michelle Pfeiffer. But what good will that do, with lethal cantaloupes roaming around out there? I’m open to suggestions.

April 20, 2012

Albert Schweitzer once said, “Happiness is nothing more than good health and a bad memory.” If you live in the Gulf region, I would imagine you’d need a pretty bad memory to forget the BP oil rig explosion and spill, celebrating it's second anniverary today. For others, good health may be just as unlikely right now.

Like all environmental disasters, the most serious health effects take time to develop. Just look at the terrible state of affairs for Ground Zero clean up workers, who are sick and dying more than a decade after 9/11. People are still sick and dying today in Bhopal India, 27 years after a horrendous chemical explosion. They’re all like this, these catastrophes.

BP’s Gulf Coast disaster is no different. So much focus has been on the commercial losses suffered by individual and businesses. Please don’t get me wrong, these are important. In fact, we note with interest the results of a new audit of the Gulf Coast Claims Facility, commissioned by the U.S. Department of Justice, which found,

Thousands of people affected by the BP oil spill will receive $64 million in additional compensation after an independent audit identified “significant” errors in the claims process set up after the disaster, the Justice Department said Thursday.

The independent audit, conducted for the Justice Department by an outside consulting firm, found that the Gulf Coast Claims Facility (GCCF) did not adequately compensate 7,300 individuals and businesses.

In addition, the audit found 2,600 claims that were wrongly denied, but will not receive additional payments, “because their claim files did not contain information needed to determine whether the claimants sustained a financial loss,” according to an executive summary of the audit.

Last month, the Mississippi Center for Justice, which provided pro bono legal services for claimants, said it was helping 7,000 people who were not part of the litigation and were struggling to navigate Feinberg's complex claims process. Martha Bergmark, the center president, said the process needed to be more transparent and equitable.

John Jopling, the center's managing attorney in Biloxi, thanked the Justice Department for a speedy and thorough review, but said the center "hopes it's just the first step to paying tens of thousands of claimants who haven't been paid and may still be awaiting a determination."

Yet those facing health problems are in even worse shape. So kudos to the Huffington Post, for taking on this issue and, sadly but not unexpectedly, finding some horrendous health problems surfacing - especially among children living close by. One mom, Nicole Maurer, has several terribly sick children and now, her kitchen cupboard “resembles a pharmacy” with all the medications they need. Yet until now, her family has had no recourse whatsoever:

Nicole Maurer’s claims for compensation from BP have so far been “denied, denied, denied,” she says. “Did I say ‘denied?'” Her husband, William, earns a fraction of what he used to as a commercial fisherman, making their plan to move away from the Gulf Coast all but impossible.

… William says he is “sure” he brought chemical dispersants and crude oil home every night while working on the Gulf cleanup. “I never got one piece of protective equipment or clothing,” he says, before erupting into one of his frequent coughing fits and spitting into the garbage can. A lack of protection for the cleanup crews has made its own headlines over the last two years.

I say “until now,” because attorneys working on behalf of the victims have forced BP to cough up some money to help families with chronic health problems and to institute critical medical monitoring. Kudos to them, because without litigation, BP would have had no motive to do it – especially since they still deny any liability for these claims.

For two years, BP and the state and federal governments denied the epidemic of respiratory problems, dizziness and headaches, horrific skin lesions, and blood problems was linked with the oil and chemical disaster -- despite the fact that medical literature identifies these identical symptoms as characteristic of oil spill exposure. Now under the BP-Plaintiffs' Settlement, BP has agreed to pay literally billions of dollars for medical claims, medical monitoring for twenty-one years, medical services, and community health clinics for underserved populations staffed with specialists in chemical illness treatment -- but with no admission of liability.

March 05, 2012

When the story hit over the weekend about how defensive players on the New Orleans Saints “maintained a 'bounty' program funded primarily by players … for inflicting injuries on opposing players,” I thought, “we sure could use some news about this great city where someone hasn’t been hurt!” (Or maybe it was just a bad weekend.)

Those hurt by BP’s Deepwater Horizon explosion and massive oil spill were certainly the subject of big news late Friday, when BP agreed to “settle health and economic damage claims by individuals and businesses who were harmed by the Gulf of Mexico oil spill,” removing Ken Feinberg and the tainted Gulf Coast Claims Facility from the claims process and, if approved, substituting instead Patrick Juneau, an experienced special master from Lafayette. BP estimates that the deal will cost about $7.8 billion but the settlement is uncapped, “meaning there's no limit on how much money is available to pay damages.”

The plaintiffs say that the new process will be more transparent than the Gulf Coast Claims Facility. Calculations will be made under formulas approved by the court, so people will be able to see exactly how their award was made and can dispute it if necessary. Few details are available about how the claims will be organized, but they take into account the types of damage and proximity to the coast. Each claim will be multiplied by a "risk transfer premium" that will differ by type of claims since no punitive damages were awarded by a court. The plaintiffs say that the risk transfer premium will ensure that their deal will pay more in compensation than what Feinberg did, but not enough details have been worked out from their agreement in principle to say what the multipliers are and how large the biggest multiplier is.

"Under the new program, eligible claimants will generally be paid greater benefits than under the GCCF," said Stephen Herman and Jim Roy, liaison counsels for the plaintiffs, in a press release.

Yet that’s not all. Hurricane Katrina made the news late Friday, too. As the Times-Picayunereported it,

The U.S. 5th Circuit Court of Appeals on Friday upheld a lower court ruling finding the Army Corps of Engineers responsible for flooding portion of the Lower 9th Ward and St. Bernard Parish during Hurricane Katrina because of its failure to maintain the Mississippi River-Gulf Outlet. If upheld by the U.S. Supreme Court, the ruling could eventually result in residents, businesses and local governments being reimbursed for damages of as much as $20 billion, according to the lead attorney representing plaintiffs in the case.

We should also note that this decision, “found the corps to be immune for damages to thousands of New Orleans residents caused by flooding when walls along drainage canals in western New Orleans failed,” even though “negligent and wrongful acts of federal employees” may have been involved. But, said the Court, “the failure to maintain the MR-GO was unrelated to the flood control activities represented by the levees along its banks, and instead was the equivalent of a Navy captain failing to maintain a ship that crashes through a levee.”

[A]warded a total of nearly $720,000 in damages to five plaintiffs who sued. The corps also has received roughly 500,000 administrative claims that could become fodder for similar suits.

Plaintiffs’ attorney Pierce O’Donnell expressed hope that Friday’s ruling could stimulate settlement talks with the government to resolve the pending claims.

“This is a landmark victory, not just for the people ravaged by Katrina’s flooding but for all Americans,” he said. “We must hold our government accountable when it inflicts avoidable harm on its citizens.”

August 03, 2011

I realize that there’s much to be angry about these days so I’m always looking for fun ways to channel the rage, and I think I found one! How about protesting some Fat Cats in Fat City? By Fat Cats, we mean the political horror show known as the annual summit of the American Legislative Exchange Council. ALEC is the national secret organization of conservative state lawmakers and major corporations that writes bills for states and tells them what to do. Their annual festivities are taking place right now at the French Quarter Marriot in New Orleans! Find out all you need to know here and let the good times roll (or as they say, laissez le bon temp rouler)!

led by such firms as Wal-Mart, Coca-Cola, Koch Industries, AT&T, Altria and ExxonMobil, the American Legislative Exchange Council has quietly made itself a force in all 50 state capitols. The 22 companies that make up ALEC's "private enterprise board," their executives and affiliated political action committees, put more than $38 million into state elections in the 2009-10 election cycle and have invested more than $370 million in state politics since 2001, according to the report, Money, Power and the American Legislative Exchange Council.

So we thought it might be a good idea to dig down into both the CMD and CJ&D efforts and figure out what both organizations observed might be priority “tort reform” areas for states these days. Here are a few:

Comparative Fault ActThis bill changes the law in most states by preventing an injured person from recovering anything if his or her fault “exceeds that of the defendants and nonparties.” Right now, judges and juries decide compensation based on the amount someone is at fault, if at all. This bill takes away the jury’s power and could result in the very harsh result of an injured person receiving nothing, even though a defendant’s misconduct contributes substantially to the injury.

Class Actions Improvement ActRather than improving the right to bring class action lawsuits, this “improvement” bill would severely limit them by limiting where they could be brought and giving the defendant new rights to appeal class-action certification.

Noneconomic Damage Awards ActThis bill limits all noneconomic damage awards to “$250,000 or the amount awarded in economic damages, whichever amount is greater.” See more about the impact of such caps here.

Punitive Damages Standards ActThis bill makes it much more difficult for injured plaintiffs to receive punitive damages, which are only awarded in cases of egregious misconduct.

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